Clark v London Borough of Havering & Anor

A highway authority’s statutory power to cut grass does not, without more, create a common-law duty to do so. A duty may arise where the authority has entered into a relationship or undertaken responsibilities which provide an orthodox common-law basis for liability, but routine grass cutting for environmental or amenity purposes is insufficient.

Under section 41 of the Highways Act 1980, the relevant question is whether the physical condition of the highway was objectively dangerous for ordinary traffic. The statutory defence under section 58 requires attention to the particular defect, the authority’s inspection and repair system, and what was reasonably foreseeable. It does not impose an unparticularised duty to keep grass short to reveal concealed hazards.

The claimant was injured after stepping into an uncovered stopcock housing on a grass verge forming part of a highway maintainable at public expense. The County Court entered judgment against the highway authority and the owner responsible for the stopcock, apportioning liability equally.

The highway authority appealed. The appeal concerned whether it owed a common-law duty to cut the grass, whether the grass itself created a breach of section 41 of the Highways Act 1980, and whether the authority had established the statutory defence under section 58.

1. The appeal was allowed and judgment was substituted dismissing the claim against the highway authority. The judgment against the second defendant remained unaffected.
2. The authority was sued only in its capacity as highway authority. Applying Gorringe v Calderdale Metropolitan Borough Council [2004] UKHL 15, the existence of a statutory power to cut grass did not itself create a common-law duty of care. No relationship with the claimant or assumption of responsibility for grass cutting had been established.
3. The section 41 duty was concerned with maintaining the fabric of the highway so that it was reasonably safe for ordinary traffic. The dangerous condition in this case was the hole caused by the missing stopcock cover, not the length of the grass. It was unnecessary to decide whether grass could ever make a highway objectively dangerous for section 41 purposes.
4. The County Court had approached section 58 from the wrong premise. The relevant issue was whether the authority had taken reasonable care to prevent the particular defect from making the highway dangerous. The court had to consider the character and expected traffic, the appropriate maintenance standard, the condition reasonably expected, the authority’s actual or constructive knowledge, and any practicable warning.
5. The County Court had not criticised the inspection system or the inspector’s conduct. On the evidence, and given the limited use of the verge, the only sensible conclusion was that the section 58 defence had been established. A different system or different facts might produce another result, particularly where an obstruction prevented an adequate inspection.

• High Court (Queen’s Bench Division): allowed the appeal from the Romford County Court and substituted judgment dismissing the claim against the highway authority.
• Romford County Court: on 1 June 2007, awarded agreed damages of £1,500 against both defendants, with liability apportioned equally.